Court File and Parties

COURT FILE NO.: CV-18-137486 DATE: 20181022 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Danny Ernest Willis, Shawn Marie Edwards and Susan Leanne Schickedanz Applicants – and – David Joseph Burgie, also known as Dave Burgie, in his personal capacity as the Guardian and Power of Attorney for Health and Personal Care and Guardian and Power of Attorney for Property of Hilda Anne Willis, and Hilda Anne Willis, an incapable person. Respondents

Counsel: S. Steven Sands for the Applicants William J. Leslie, Q.C. for Mr. Burgie No one appearing for Ms. Willis

HEARD: October 19, 2018

Ruling on Guardianship Motion

boswell j.

[1] Anne Willis is an 86 year old resident of Wasaga Beach. She has dementia. As I write this ruling, she is hospitalized in Orillia following a minor stroke. She is the focus of this proceeding, but she has not been present for any of it.

[2] Ms. Willis is married. In February 2017 she wed the man she has lived with since 2005. His name is David Burgie and he is the respondent in this proceeding. The applicants are Ms. Willis’ three adult children.

[3] The stakes in this proceeding are Ms. Willis’ health care and the management of her financial affairs.

The Proceedings to Date

[4] The litigation commenced with an application issued on September 25, 2018. The applicants seek orders that include the following: (1) compelling Mr. Burgie to pass accounts as Ms. Willis’ attorney for property; (2) compelling Mr. Burgie to produce original copies of Ms. Willis’ powers of attorney for property and personal care, as well as her will; (3) compelling Mr. Burgie to account for any assets he has received from Ms. Willis; (4) removing Mr. Burgie as Ms. Willis’ attorney for property and personal care; and, (5) compelling Mr. Burgie to vacate the residence he has lived in with Ms. Willis since 2005.

[5] The application first came before the court on October 11, 2018. It was adjourned for about a week at the request of Mr. Burgie’s counsel, who had just been retained.

[6] On October 19, 2018 the matter was back before the court. On this date, the applicants proceeded only with a motion they served subsequent to October 11, 2018. By way of motion they seek: (1) a declaration that Ms. Willis is incapable of managing her property and personal care; (2) orders appointing the applicants as guardians for Ms. Willis, both for property and personal care; and (3) an order that Mr. Burgie provide disclosure of Ms. Willis’ financial affairs.

The Legal Framework

[7] The motion is brought pursuant to a number of provisions of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, including the following:

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

22 (1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.

45 A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

55 (1) The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.

58 (1) An order appointing a guardian of the person shall include a finding that the person is incapable in respect of the functions referred to in section 45, or in respect of some of them, and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.

The Parties’ Positions

[8] The applicants fear that Mr. Burgie, driven by selfish and improper motives, has insinuated himself into Ms. Willis’ life and has taken advantage of her financially. They fear that he is not responsible when it comes to Ms. Willis’ personal care and allege that he has neglected her and her care by leaving her alone for extended periods of time and by failing to take her to regularly scheduled medical appointments.

[9] The applicants assert that Ms. Willis is incapable of managing her financial affairs and personal health. They argue that Mr. Burgie is not an appropriate person to do so and assert that they are the best option for guardianship of Ms. Willis’ affairs – both personal and financial.

[10] Mr. Burgie fears that the applicants, driven by selfish and improper motives, are attempting to take advantage of Ms. Willis’ vulnerable condition. He contends that he loves Ms. Willis and has for many years. He is her primary caregiver and has always done his best for her. He denies that he has taken financial advantage of her and insists that they have always kept their finances separate.

[11] Mr. Burgie believes his wife now requires care in a long-term care facility but submits that he remains best-suited to make any health care and financial decisions on her behalf.

Admonition

[12] The materials filed before the court make it abundantly clear that emotions are running high between the two camps to the litigation. The affidavits submitted to the court are rife with speculation, innuendo, opinion and suspicion.

[13] The parties need to be clear that this court does not act on fear, suspicion and conjecture. It acts on evidence. Evidence consists of the observations – not the guesswork and opinions – of witnesses.

[14] With that admonition in place, I will set out the facts, as far as I can determine them from my current vantage point, based on the evidence contained in the affidavits filed to date.

Factual Findings

[15] Ms. Willis is 86 years old. David Burgie is 87. They began to cohabit in 2005 and were married at Wasaga Beach in February 2017.

[16] Ms. Willis suffers from dementia. Her health has been deteriorating for the past two years or so.

[17] In January 2017, Ms. Willis met with her family doctor, Dr. Anne Engell, together with Mr. Burgie and one or more of Ms. Willis’ children. The focus of the meeting appears to have been on whether Ms. Willis was capable of continuing to drive an automobile. Dr. Engell had notified the Ministry of Transportation (“MTO”) that Ms. Willis had experienced a change in mental functioning – particularly a loss of memory.

[18] Ms. Willis was unhappy with the outcome of the meeting.

[19] About a month later Ms. Willis and Mr. Burgie were married at the municipal offices in Wasaga Beach. The wedding was witnessed by Ms. Willis’ friend and neighbor, Jackie DiPietro, and her hairdresser. Ms. Willis’ children were not in attendance. They had not been invited.

[20] I have a singularly insufficient basis upon which to conclude that there was anything untoward about the wedding, or that Ms. Willis lacked the capacity to appreciate the nature and consequences of the marriage. Indeed, Ms. DiPietro deposed that at the date of marriage, Ms. Willis “very much knew what she was doing”. She said that she has observed that Mr. Burgie and Ms. Willis have a close and loving relationship.

[21] It appears that Ms. Willis may have executed a new will following the marriage. That is not entirely clear at this stage of the proceedings. She did not execute new powers of attorney.

[22] Ms. Willis did execute a power of attorney for property on January 15, 2001 naming her former spouse, Donald Willis, as her attorney for property. Her son, Danny Willis, one of the applicants, was named as an alternate attorney. Donald Willis is deceased. Danny Willis is, by all present appearances, the attorney for Ms. Willis’ property. There is no evidence before the court that the 2001 power of attorney has been altered or revoked.

[23] At the end of June 2017 Ms. Willis participated in a driver assessment. Her driver’s license had been suspended on the strength of the letter written to the MTO by Dr. Engell. She was referred for assessment by the MTO to determine whether her license ought to be reinstated. The conclusion of the assessor was that her license ought not to be reinstated. Findings on the assessment included the following:

(a) Severe impairment of attention and concentration; (b) Inability to generate an appropriate solution to an everyday problem of daily living; (c) Decreased attention, judgment and processing speed; and, (d) The road test was terminated early for safety concerns.

[24] On May 30, 2018, Ms. Willis was assessed by an experienced capacity assessor. She concluded that Ms. Willis did not, at that time, understand and appreciate the consequences of her decisions or lack of decisions regarding her property. She was, as a consequence, incapable of managing her property. She also concluded that Ms. Willis was incapable of making decisions regarding her personal health care, safety, nutrition, shelter, clothing and hygiene given her degree of memory loss, confusion, poor judgment, impaired problem solving skills and lack of insight.

Analysis

Capacity

[25] I am satisfied, based on the diagnosis of dementia, the results of the driving assessment, the capacity assessment and the observations of the witnesses who filed affidavits, that Ms. Willis is incapable of managing her property and incapable of managing her personal care in the areas of health care, nutrition, shelter, clothing, hygiene and safety.

Guardianship for Property

[26] Ms. Willis needs assistance in managing her financial affairs. It is unnecessary, at this stage, however, that I make a guardianship order. There appears to be a valid and subsisting power of attorney for property in favour of Danny Willis.

[27] According to Mr. Burgie, and corroborated by Ms. DiPietro, he and Ms. Willis always kept their financial affairs separate. It should be relatively straightforward, therefore, for Danny Willis to assume responsibility for his mother’s finances.

[28] In this highly litigious climate I urge Mr. Willis to keep careful and detailed records of his activities as his mother’s attorney.

Guardianship of the Person

[29] Dementia is an insidious condition. It progressively robs a person of the things that make that person him or her. It is not turned on like a light switch, such that it is not there one day, but there the next. It starts out slowly and vaguely. Absent-mindedness. A forgotten name or date. Eventually, it begins to impair the person’s ability to process information, to exercise good judgment and to make decisions. The progression is gradual and not necessarily linear. There may be bad days and better days on the journey.

[30] I am satisfied that Mr. Burgie loves Ms. Willis. I am also satisfied that her dementia has progressed beyond the stage where he is capable of caring for her, on his own, on a full-time basis. He recognizes this. He agrees that she needs to be placed in a long-term care facility.

[31] I am also satisfied that Mr. Burgie has not appreciated the seriousness of his wife’s decline over the past two years. This is understandable. He lives with her on a day-to-day basis. She, and no doubt he, will inevitably have found mechanisms to adjust for and/or cope with her declining cognitive state. He also loves her. He may not be ready to accept that she is, or soon will be, lost to him.

[32] Mr. Burgie may not have been as attentive to Ms. Willis’ care as he might have been. It is impossible to come to that conclusion on this record and given the fact that he and no one else has lived with her for the past two years. There may have been times when she was entirely lucid and other times when she was confused and in need of swift attention.

[33] I am not persuaded that Mr. Burgie has been irresponsible in terms of his wife’s care. I do not have a sufficient record to draw that conclusion. And I frankly think this is one of those cases where it is difficult to judge a man, not having walked a mile in his shoes.

[34] Mr. Burgie has not applied for a guardianship order. Perhaps as her spouse he doesn’t think that is necessary.

[35] The applicants have, of course, sought a guardianship order. I am not prepared to grant it at this stage.

[36] There is agreement on the suggestion that Ms. Willis ultimately be placed into a long term care facility. That will have to be sourced out. In the meantime, I am satisfied that she will be well-cared for if she is released from the hospital into Mr. Burgie’s care, provided his care is supplemented by at least three hours per day of homecare. That homecare will provide Mr. Burgie with some undoubtedly necessary respite.

[37] I am not clear on how long Ms. Willis has lived in her home in Wasaga Beach. I know that she has lived there with Mr. Burgie since 2005. In my view, that status quo should not be disturbed absent compelling reasons. Those reasons do not presently exist.

Counsel for Ms. Willis

[38] The court has the discretion, pursuant to section 3 of the Substitute Decisions Act, 1992, to direct the Public Guardian and Trustee to arrange counsel for Ms. Willis. No one is opposed to the court making such an order. I think it is a good idea.

[39] Having said that, it is premature to make the order because I do not know how counsel will be paid for. I have no idea if Legal Aid might be available to her, nor do I know if she has the resources to pay for a lawyer. That is an issue that will, unfortunately, have to wait for another day.

Conclusion

[40] In summary, I conclude as follows:

(a) Anne Willis is incapable of managing her property. That said, she has appointed Danny Willis as her attorney for property. A guardianship order in relation to her property is unnecessary; and,

(b) Anne Willis is incapable of managing her personal care, in particular in relation to her health care, nutrition, shelter, clothing, hygiene and safety. I am not persuaded, however, that the applicants should be appointed as her guardians for personal care. In my view, her immediate needs are best served being returned to the home she has occupied for well over a decade and to the care of her spouse, supplemented by at least three hours per day of homecare.

[41] The application is otherwise adjourned without a fixed return date. It may be returned to the court by either party on seven days’ notice.

[42] I have not addressed the issue of costs. If the parties are unable to agree on an appropriate resolution of the costs issue they may make submissions to the court in writing. Any such submissions are not to exceed 2 pages in length (not including cost outlines). They are to be emailed to my assistant at Bev.Taylor@ontario.ca. The applicants’ submissions are to be served and filed by November 5, 2018 and the respondent’s by November 19, 2018.

Boswell J.

Released: October 22, 2018